Crecelius v. Chicago, M. & St. P. Ry. Co.

Citation205 S.W. 181,274 Mo. 671
Decision Date17 May 1918
Docket NumberNo. 18750.,18750.
CourtUnited States State Supreme Court of Missouri
PartiesCRECELIUS v. CHICAGO, M. & ST. P. RY. CO.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Maude Crecelius, administrator of the estate of Walter Crecelius, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

This is an action brought by plaintiff, as the administratrix of one Walter Crecelius, deceased, against defendant, under the federal Employers' Liability Act, for the alleged negligent killing of plaintiff's decedent. Upon a trial in the circuit court of Grundy county, plaintiff had judgment for the sum of $25,000, from which judgment, alter the conventional procedure, defendant has appealed.

As stated, plaintiff brings this action as the administratrix of said Crecelius, whom we shall, for brevity, hereinafter call deceased. The deceased at the time he lost his life was in the employ of defendant as a timekeeper for a gang of Bulgarian and Armenian laborers, who were engaged at or near the little village of Morley, in the state of Iowa, in repairing the main line track of defendant, and in constructing a temporary track thereafter to be used for main line traffic, pending the lowering of the grade of defendant's main interstate railroad track. Deceased was killed at about the hour of 6:30 in the evening of March 14, 1913. At this time the gang of laborers of which deceased was timekeeper had quit work for the day, and had returned to the boarding cars and eaten their suppers. It was the duty of deceased as timekeeper to make a record of the number of laborers engaged in work, of the hours worked by each laborer, of the nature of the work done by the gang, of the number of ties laid, the amount of steel put in, and various other details, showing the progress of the work and the material used therein. It was also the duty of deceased to make daily reports showing the above facts, as well as monthly reports, once each month. The reports, which deceased was required to make daily both by wire and by mail, were made to the division roadmaster at Marion, Iowa. He was accustomed to make out these reports after work hours, since this was the only time at which it was possible for him to have the information which he was required to include in them. He was in the habit of preparing these reports between 6:30 o'clock and 7 o'clock in the evening of each day, and of transmitting same both by mail and by wire as early as possible thereafter.

On the day that deceased was killed, and after he with the gang of laborers had returned from work upon the main track and the said temporary track, he ate his supper and made out his daily report for transmission by wire to the roadmaster. A few minutes (one witness said two to five minutes) before he was killed he left the car in which he kept his desk with the remark that he was going to send his message. After going out of his office car he went into the car occupied by the interpreter of the gang. He remained in this car but a moment, and then came out and started across the tracks o: defendant toward the depot, wherein the telegraph office was maintained. In the meantime, a freight train of defendant, called in the testimony a nay freight, had come up to the depot, and had stopped there apparently for the purpose of discharging freight. As deceased went across the tracks of defendant toward the depot, he stopped in the middle of what is called the passing track, at a point some 10 feet from the locomotive of the way freight, and stood at this point, apparently looking at this train. After he had been standing in this position for some 25 seconds, he was run down and killed by a car attached to the work, train, which was used in hauling the material for this gang of laborers. At this time the work train was doing certain switching in the yards at Morley, for the purpose of making up the train to return to Marion, Iowa, which was a division point, and a station upon defendant's railroad some 18 or 20 miles from Morley.

At the time defendant was killed he was in good health, except that he was very hard of hearing, and about 35 years of age. His wages at this time were $60 a month. He left surviving him a wife and one child 6 years old, for whose use and benefit the wife, as administratrix, is here suing.

There are keen contradictions in the testimony. The statement of the facts as made by us are taken largely from the testimony of witnesses adduced by plaintiff. This is done because a demurrer to the testimony was offered, and because the point here chiefly relied on for reversal is that there is not sufficient evidence to take the "case to the when he was killed, was not engaged in the performing of such labors, or duties as to bring him within the purview of the federal Employers' Liability Act.

While upon the law applicable to such a contention, present defendant's negligence, the countervailing testimony as to the manner in which deceased lost his life is scarcely important, except as a matter of curiosity, we may yet say in passing, that if the testimony of the witnesses for the defendant is to be believed, defendant was wholly without negligence, and deceased lost his life by his own gross lack of care and contributory negligence. Upon this sharply contradicted phase of the case the testimony adduced by plaintiff tended to show that it was dusk, approaching dark, and spitting snow slightly at the moment deceased was struck; that the work train which struck him was running with an old gondola car in front of the engine; that this car prevented the engineer and fireman from getting a clear view of the track in front; that this work train was running at a prohibited rate of speed, to wit, about 12 miles an hour; that there was no brakeman, or other person on the front of the train to keep a lookout, and that deceased could have been seen and the train stopped in time to avoid striking him had defendant's servants, agents, and employés kept a proper lookout, such as the situation demanded.

Touching this situation it further appeared that there were some hundred or more laborers engaged in this work and composing this gang; that all of these persons were housed in some boarding cars, which were set upon a side track. This side track was separated from the town of Morley and the depot by the main track and the passing track. It was necessary for all or these persons who were in this gang or engaged in work about these boarding cars to cross both the main track and the passing track at all hours, and that defendant's crew in charge of this work train knew this fact, and that it was the duty of defendant to exercise in all its switching operations a care commensurate with the dangers existent.

The testimony on the part of defendant tended to show that at the time the deceased was killed the work train was running only some 6 or 7 miles an hour; that the gondola car, which was in front of the locomotive, was a small one, so that both the fireman and engineer could see over it, and that there was maintained a lookout at the time of the accident; that a brakeman was standing at the brake wheel on a small platform on the front end of the car which struck and killed deceased. Some three or four witnesses for defendant, who say they were in a position to see and did see the whole casualty, testified that as the work train approached a point opposite the interpreter's car, deceased came hastily out of this car, passing therefrom on a board laid from the car to the top of a pile of coal, and ran down this pile of coal directly in front of the work train; that when he came out of the interpreter's car, the work train was only some 25 feet distant, and that, without looking or stopping, deceased traversed rapidly the space of some 6 or 8 feet between the interpreter's car and the track on which the work train was approaching, and came upon the passing track directly in front of the train when it was only some 6 or 8 feet from him. After striking and killing deceased the work train stopped almost instantly. So quickly did it stop that deceased's body was taken from the track at a point only some 26 feet from where he had been struck, and directly in front of the cowcatcher upon the locomotive. In stopping the engineer reversed his engine and the stop made was so sudden as to derail the gondola car.

Upon the trial of the case a stipulation was offered. This stipulation had been made and was signed both by counsel for plaintiff and counsel for defendant. It occurs in the record twice. It was offered for the first time by plaintiff for the purpose, as plaintiff stated, of "showing the use made of the work train." It was offered by defendant for the purpose, as stated by defendant when offered, of "showing the work of the working crew on March 14, 1913, of which deceased was the timekeeper." No objections or exceptions were made by either party to the offering of this stipulation, nor to the verbal limitations made when offering it touching its probative effect. This stipulation, omitting signatures of counsel and formal parts, which are conventional, reads thus:

"It is hereby agreed and stipulated by and between the parties hereto that, on the day that Walter Crecelius was killed, March 14, 1913, the crew of which Walter Crecelius was timekeeper, and of which William Metcalf was foreman, had been engaged in ballasting a temporary track along the side of the main line of defendant's railroad at Morley, Jones county, Iowa; that said temporary track was to be used when repairs and construction were completed as the main line for the passage of all trains while the grade of the regular main line was being reduced; said temporary track when finished to be used for the purpose of transporting trains carrying freight and passengers...

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